Marine Midland Bank v. Bicknell, 2004 VT 25 (Vt. 3/19/2004)

• Decision Date: 19 March 2004
• Docket Number: No. 2003-127, October Term, 2003.,2003-127, October Term, 2003.
• Citation: 2004 VT 25
• Parties: Marine Midland Bank, v. David R. Bicknell.
• Court: Vermont Supreme Court

Page 1

2004 VT 25

Marine Midland Bank, v. David R. Bicknell.

No. 2003-127, October Term, 2003.

Supreme Court of Vermont

March 19, 2004

On Appeal from Addison Superior Court, Helen M. Toor, J.

Alan A. Bjerke of Bauer, Anderson & Gravel, Burlington, and Steven D. Karlin of Platzer, Swergold, Karlin, Levine, Goldberg & Jaslow, New York, New York, for Plaintiff-Appellant.

Jon T. Alexander of Burak Anderson & Melloni, PLC, Burlington, for Defendant-Appellee.

PRESENT: Amestoy, C.J., Dooley, Johnson, Skoglund and Reiber, JJ.

AMESTOY, C.J.

¶ 1. Marine Midland Bank appeals the trial court's dismissal of its action to domesticate and enforce a 1991 New York judgment against appellee, David Bicknell. We agree with the trial court that the action is barred by the statute of limitations, and therefore we affirm.

¶ 2. In 1991, appellant obtained a judgment against David R. Bicknell and a co-defendant in the amount of $231,292.98 in the Supreme Court for the County of New York, New York. The judgment remains unsatisfied. According to appellant, at the time the judgment was entered, and up until sometime in June 2000, Mr. Bicknell remained a resident of the State of New York. Around June 2000, upon finding that Mr. Bicknell had relocated to Vermont,¹ appellant sought to domesticate the New York judgment in the Vermont courts. Mr. Bicknell moved to dismiss for failure to state a claim, arguing that the action was barred by 12 V.S.A. § 506, the eight year statute of limitations for actions on judgments. The court found that § 506 applied and that, contrary to appellant's assertion Vermont's tolling statute, 12 V.S.A § 552, did not extend to this action because both parties were New York residents when the cause of action accrued. Accordingly, the court granted Mr. Bicknell's motion to dismiss. This appeal followed.

¶ 3. On review of a decision under Rule 12(b)(6) that plaintiff has failed to state a claim on which relief can be granted, we "must assume the factual allegations in [the] complaint are true," and determine whether "it appears beyond doubt that there exist no circumstances or facts which the plaintiff could prove above the claim made in his complaint which would entitle him to relief." Ass'n of Haystack Prop. Owners, Inc. v. Sprague, 145 Vt. 443, 444, 446, 494 A.2d 122, 123, 124 (internal quotations omitted) (1985). On matters of statutory interpretation, however, our review is nondeferential and plenary. State v. Koch, 169 Vt. 109, 112, 730 A.2d 577, 580 (1999). We look first to the plain meaning of the statutory language, and if it is clear and unambiguous, we will apply it, without resorting to statutory construction or determination of legislative intent. Wentworth v. Fletcher Allen Health Care, 171 Vt. 614, 617, 765 A.2d 456, 461 (2000) (mem.).

¶ 4. In Vermont, "[a]ctions on judgments and actions for the renewal or revival of judgments shall be brought within eight years after the rendition of the judgment, and not after." 12 V.S.A. § 506. The judgment in this case was rendered in 1991, and the Vermont action was commenced in 2000; thus, the action was prima facie barred by the statute. See Capen v. Woodrow, 51 Vt. 106, 107 (1878). Nevertheless, appellant claims that the action was tolled under 12 V.S.A. § 552 because Mr. Bicknell did not come to Vermont until 2000.

¶ 5. Section 552 of title 12 provides

If a person is out of the state when a cause of action . . . accrues against him, the action may be commenced within the time limited therefor after such person comes into the state. If a person is absent from and resides out of the state after a cause of action accrues against him and before the statute has run, and he has not known property within the state which can by common process of law be attached, the time of his absence shall not be taken as part of the time limited for the commencement of the action. The provisions of this section shall not extend to a cause of action accruing in another state or government, when the parties thereto at the time of the accruing of such cause of action are residents of such other state or government.

The statute thus indicates that there are some situations in which the cause of action will be tolled until the person comes into the state. However, the statute's last clause expressly excludes actions accruing in other states where the parties are residents of the other states at the time of accrual. The trial court found that it was clear from the complaint that both parties were residents of New York when the cause of action accrued, and therefore appellant could not avail itself of § 552 to avoid the statute of limitations period found in § 506. We agree. Section 552 tolls a cause of action after its accrual while the defendant is out of the state and does not own property in Vermont that can be attached. The last clause, however, excludes causes of action accruing in other states, so long as the parties to the accruing cause are residents of that state. Trask v. Karrick, 94 Vt. 70, 73, 108 A. 846, 847 (1920).

¶ 6. Appellant claims that the trial court erred in applying the exception to the tolling statute provided in § 552 because, although both parties were New York residents, the action on the judgment had not accrued under New York law. Appellant relies on New York's C.P.L.R.. § 5014, the statutory authority under which a judgment creditor may bring an action on a New York judgment. The creditor may do so only after a ten-year waiting period following the docketing of the judgment, C.P.L.R. § 5014(1); or where the judgment was entered on default and there was no personal service of the summons, C.P.L.R. § 5014(2); or where the court which rendered the judgment grants to the judgment creditor an order upon motion permitting the creditor to bring an action, C.P.L.R. § 5014(3). Because the action at issue here does not meet any of these provisions, appellant argues that the action never accrued while the parties were in New York. Accordingly, appellant claims that the court erred in dismissing the action as untimely. Appellant claims that the time when Mr. Bicknell allegedly established his domicile in Vermont — in 2000 — was appellant's first opportunity to bring an action on the judgment because the statutorily-imposed waiting period had barred -and was still barring- an action on the judgment in the New York courts. Thus, for appellant, Mr. Bicknell's relocation marks the time when the cause of action accrued and the tolling of the Vermont statute of limitations ended. We disagree.

¶ 7. Vermont law governs all procedural issues in actions to enforce foreign judgments in Vermont courts. Wursthaus, Inc. v. Cerreta, 149 Vt. 54, 55-56 n.*, 539 A.2d 534, 535 n.* (1987); see also Restatement (2d) Conflict of Laws § 99 (1971) ("The local law of the forum determines the methods by which a judgment of another state is enforced."). When a cause of action is brought in Vermont, Vermont law determines the accrual date and the limitations period. See Jacques v. Jacques, 128 Vt. 140, 141-42, 259 A.2d 779, 780-81 (1969). Thus, a cause of action accrued in a foreign jurisdiction cannot be maintained after the time limit imposed by the Vermont statute for the same kind of action has expired. Id., 259 A.2d at 780. Conversely, an action timely brought in Vermont can be maintained here even if time-barred in the jurisdiction where the action arose. Id. at 142, 259 A.2d at 781. The only exception to this rule occurs when a foreign statute creates a new right of action and prescribes a specific limitation period. Id. That is not the case here, however. An action upon a judgment is a well recognized common law action. Koerber v. Middlesex College, 136 Vt. 4, 6, 383 A.2d 1054, 1055-56 (1978).

¶ 8. Appellant is suing on a Vermont cause or right of action in a Vermont court. Since the right to enforce the judgment is not a creature of a foreign statute, but rather a common law action, we cannot import a foreign statute to determine its accrual date. Under Vermont law, "[a] judgment creditor generally has a right to bring an action upon a judgment at any time after its rendition, until it is barred by the statute of limitation." Id. at 7, 383 A.2d at 1056 (emphasis added). An action on a foreign judgment not commenced within eight years is prima facie barred by the statute. See Capen, 51 Vt. at 107. Although some jurisdictions — such as New York — bar actions on judgments while execution is available in order to prevent "needless and vexatious...